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Ian Watkins, former singer in the Lostprophets, yesterday pleaded guilty to attempted rape and sexual assault of a child under 13 (but not guilty to rape) and he “also admitted three counts of sexual assault involving children and six involving taking, making or possessing indecent images of children and one of possessing an extreme pornographic image involving a sex act on an animal“. Two women, known only as A and B, also pleaded guilty to attempted rape and conspiracy to commit rape, among other offences. It appears that they abused their own children and filmed that abuse for Mr Watkin’s benefit, as well as making their children available for him to abuse.

Mr Watkins (presumably with the others) will be sentenced on 19 December 2013.

On 12 December 2013, the Sentencing Council is due to publish its Definitive Guideline on Sentencing Sexual Offences. It is expected that the guideline will come into force in January or February 2014. So which applies to Mr Watkins? Is it the existing guideline, which will still be in force when he is sentenced, or the new guideline, which won’t have taken effect?

Court of Appeal cases

Some readers will no doubt recall a similar (but not the same) issue arising upon the publication of the drugs guideline in 2012. It was published on 24 January 2012 and came into force on 27 February 2012. Ms Boakye (amongst others) were sentenced for drugs offences between those two dates. They appealed against their sentences on the basis that the judges were wrong not to follow the new guideline which reduced the sentencing levels for those often described as ‘mules’.

The court held that the guideline did not apply retrospectively, adding that such an approach would create greater inconsistency and risk to justice; they said that ‘any change has to start at some point’. If someone was properly sentenced before the change, there could be no complaint. This decision was affirmed in R v Fascina 2012 EWCA Crim 2473, in which a similar issue arose.

However, in R v Bao 2007 EWCA Crim 2781, the court faced a different issue. The defendant had pleaded guilty to managing a brothel. The Sentencing Guidelines Council had published its sexual offences guideline prior to Mr Bao’s sentencing hearing but after the date of the offence. The Judge at the sentencing hearing considered the guideline. Mr Bao appealed. It was accepted that the guideline increased the sentences for that type of offence. The court said that the Judge was correct to consider the guideline even though it was not published at the time of the offence.

So there are two approaches; in Boakye, the guideline was published but the judge did not consider it as it was not yet in force (a decision which the Court of Appeal upheld). In Bao, the guideline was published and in force the judge did have regard to it (a decision which the Court of Appeal found was correct).

So what does this mean for Mr Watkins?

Neither of these cases sit on all fours with his, not least because in Bao and Boakye, there were no existing guidelines in force. That fact is likely to be the key; as the existing guidelines remain in force, and the new guidelines are not yet in force, the judge must have regard to the existing guidelines.

Would Mr Watkins be better off under the old or new guideline? The starting point for Mr Watkins, on the attempted rape of a child under 13 is in the highest category of each guideline, being 15 years in the existing guideline and 16 years in the draft of the new guideline. The court will add to the starting point by identifying aggravating features and will consider whether to sentence him as a dangerous offender. There may also be some small discount for a late guilty plea.

The Judge may well have one eye on the new guideline, but whatever happens, the sentence is going to be long.